Partition Under Hindu Law – Meaning | Rules | Rights

Partition under Hindu Law means the division of joint family property among coparceners, resulting in each coparcener receiving a specific and separate share. It brings the joint status of a Hindu Undivided Family (HUF) to an end and converts joint ownership into individual ownership.

Table of Contents

1. Meaning of Partition
2. De Facto Partition and De Jure Partition
3. Subject Matter of Partition
4. Funeral Expenses of the Mother
5. Properties Incapable of Division
6. Are the Idols and Places of Worship Divisible?
7. Can There be a Partition of Right of Way?
8. Whether a Coparcener Can Include a Term or Stipulation Be Put Under the Deed for the Right to Easement?
9. Share Allotted to Coparcener in Partition
10. Who Can Claim Partition?

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1. Meaning of Partition

The term partition means “to divide into parts or shares”¹. Under the traditional Hindu law, partition may be defined as dividing the joint family properties among the coparceners as per the rules applicable in Hindu law. The Hindu joint family can come to an end by way of partition. In other words, partition ends the joint family status. After partition, the joint family will be converted to separate nuclear families. For example, there is a joint family consisting of F, father, and his three sons FS, FS1 and FS2. If there is a partition in this family, it will result into four separate families.

In the Mitakshara coparcenary, partition results in the severance of status of the members of the family. Therefore, for a valid partition to take place there must be atleast two coparceners. In cases, where there is only one coparcener, there is no partition in such family. Rather, such person is called as a sole surviving coparcener. Till the time the coparcener is a sole surviving coparcener, he will be the owner of the entire joint family property. The moment there is birth or adoption of the child, it will become the joint family property. Such single coparcener will be the Karta of the family and will manage the property.

Example

There is joint Hindu family consisting of father F, his son, FS and wife of F, W. During the lifetime of F, there was no partition in the joint property. On the death of F, now the joint family consists of FS and W.

After the death of F, FS cannot claim partition as his father F is dead and he has now become the sole surviving coparcener. He will remain the sole surviving coparcener till the time the next coparcener is born or adopted.

Sole surviving coparcener need to fulfil all the responsibilities of the Karta. For example, managing the joint family property and business, the maintenance of the members of the family, marriage expenses of the unmarried females, religious duties, litigation expenses etc. Therefore, there can be no partition here as partition can only take place where there are two coparceners. But in such a case, the family arrangement can be made wherein the FS can maintain his separate status but for being separate, he needs to fulfil his responsibilities as a Karta by making the provision for the same.

A family arrangement is recognised under Hindu law and enables the sole surviving coparcener to maintain a status distinct from the joint family members, however, it is different from actual partition.

In the case of Dayabhaga School of law, in case of partition between coparceners, there is a division of property according to the specific shares of the coparceners.

Therefore, under Mitakshara coparcenary, partition means:

1. Severance of status or interest in coparcenary
2. Partition by metes and bounds which means actual division of the property according to the rules regarding partition.

2. De Facto Partition and De Jure Partition

The coparcenary exists within a joint family. Where there is a joint family property and there a birth taken by a child, by birth such child will be having an inherent right in the coparcenary property. This right is also accorded to the child who has been adopted. The coparcenar, whether born or adopted, have inherent rights in the coparcenary property. Such rights include right to claim partition, unity of possession and community of interest. Every coparcener, minor or major has a right to claim partition in the joint family property. Till the rime, the partition is claimed by a coparcener there is community of interest in the joint family property. Every coparcener has undivided coparcenary interest in the joint family property. In other words, every coparcener has a birth right in the coparcenary property. They are owner of a share in the property but they are unaware about the exact share that they are owner of. No coparcener can say that they own one-third or one-fourth share in the property. Such undivided coparcenary interest keeps on fluctuating. As it remains undivided till partition, such interest fluctuates on the basis of number of births, death and adoption in the family.

It will become definite the moment there is a partition in the family. Till that time, there is community of interest, in other words, every coparcener is the joint owner of the property.

Example

For example a Hindu joint family consists of F, father, his sons FS1 and FS2. They are the coparceners having birth right in the property. They are the joint owners of the property. Now, F has another son, FS3, the moment he is born, he is having a birth right in the family, he is also a joint owner of the property. This is the community of interest in the joint family property.

Another incident of the coparcenary is the unity of possession. It means that every coparcener has a right of possession of the property and right to use the property alongwith the other members of joint Hindu family. It signifies common possession of the property. There may be a partition in the family, but the coparceners still maintain unity of possession. Till the time, there is partition in the family, they are joint tenants of the family, the moment there is a partition in the family, the coparceners become tenants-in-common. In other words, the coparceners have become entitled to share in the family property but unity of possession can be maintained even after a severance of status.

Partition may be divided into two categories, de facto partition and de jure partition. De-jure partition means where partition is effected by the desire of a coparcener of declaring his intention to severe his status from joint Hindu family. Where there is community of interest and unity of possession of the joint family property and a coparcener declares his intention to separate from the joint Hindu family, it results in de jure partition. In other words, in the eyes of law, there has been a partition. On the other hand, de facto partition is where there is actual division of the property between the members of the family who are entitled to get a share in partition. This is also called as partition by metes and bounds. Where there is an actual physical division of the property between the members of the family, it will be called as de facto partition.

A joint Hindu family is said to be separated from the date of de jure partition. De facto partition may or may not follow the same. The de facto partition is where there is actual division of the properties between the family members by metes and bounds.

Example

For example, there is a joint Hindu family consisting of F, father and his sons FS1 and FS2. There is a partition between F and his sons on 1.1.2024. There is actual division of the properties on 1.2.2024, that is, what belongs to whom has been decided on 1.2.2024. There is a de-jure partition on 1.1.2024 and de-facto partition on 1.2.2024.

3. Subject Matter of Partition

All the properties are not the subject matter of partition. Only those properties can be partitioned which are joint Hindu family properties. A separate property of the member of the family is not the subject matter of partition as that property belongs to the sole owner of the property. In the partition, it is only the coparceners who participate and the other members are entitled to get a share in partition. The property will be divided between them but the question remains what will happen to the members of the family and disqualified coparceners. The maintenance of these members of the family s the responsibility of the Karta. Moreover, the provision must be made for the joint family debts and the personal debts of the father that is not immoral. The provision should also be made for the funeral expenses of the members of the family as well as the ceremonies required for the widow and the mother of the last male holder alive.

Therefore where the partition takes place between the coparceners, the provision should be made for the maintenance for members of the family, joint family debts, marriage expenses for unmarried daughter, any religious debt, religious expenses, funeral expenses, payment of the father’s debts under pious obligation, thread ceremonies of male child of family etc. The property that is left after deducting these responsibilities, will be property that is for partition between the family members. For example, there is joint Hindu family consisting of F, father and his sons FS1 and FS2 and his daughter, FD, W, widow of a pre-deceased son FS3. They have a joint Hindu family property consisting of a house where they are living and an office space, 4 other residential houses. It is decided between the coparceners to divide the properties amongst themselves. Where the property is to be divided between the coparceners, they cannot divide the property as it is. First, the arrangement has to me made to the marriage expenses of the unmarried daughter and maintenance of the unmarried daughter, FD as well as widow of the pre-deceased son, W. They also, need to provide for residence to the members of the family. It is only after that the remaining property can be divided between the coparceners. Therefore, it can be said that before the actual division of the property takes place between the coparceners, the provision of maintenance and residence have to made for the female members of the family as well for the disqualified coparceners.

Case Laws

1. In Gurnamma Bhratar Chanbasappa Deshmukh v. Mallapa Chanbasappa², the Supreme Court was deciding the issue that whether the father is capable to gift a small portion of the joint family properties to his daughter. It was observed in this case that the rule under Hindu law is that the coparceners should give either one-fourth share or provide for her maintenance and marriage expenses³.
2. In Kudutamma v. Narasimhacharyalu⁴, it was held that a Hindu father was entitled to make gifts by way of marriage portions to his daughters out of the family property to a reasonable extent.
3. In Ramchandra v Seeniathal⁵, the court held that the provision for marriage expenses has to be made only for the daughter of the father and not for the son’s daughter. The marriage expenses of the son’s daughter is the liability of the branch of the son and not of the entire family. Her marriage expenses will be borne by her father. However, the expenses for the thread ceremony of the members of the family should be made at the time for partition. The provision need not be made for the marriage expenses of the unmarried son as the son will get his share in partition.
4. The Privy council in the case of Ramalinga Annavi v. Narayana Annavi⁶, opined that the institution of a suit for partition by a member of a joint Hindu family effects a severance of the joint status of the family, and a member of the family who is then unmarried is not entitled to have a provision made in the partition for his marriage expenses, although he marries before the decree in the suit is made.

4. Funeral Expenses of the Mother

Under the traditional Hindu Law, it is the duty of the sons to perform the funeral of their mother. Even though the mother has left behind her stridhan property, the expenses are to be borne by the sons. Where there has already been a partition between the sons and they have not kept separate before partition the funeral expenses of their widowed mother, then they will contribute jointly to the expenses.

Case Law

In Vrijbhukandas v. Bai Paravati⁷, it was opined that the duty of performing the funeral ceremonies of a mother, that is, pinda dana or offering the funeral oblations, is laid down as a religious injunction binding on her son in absolute” terms by the Hindu law⁸ so much so that, even though the son is a minor and as such is not entitled to read the Vedas, he is held competent to recite the Mantras prescribed in the Shastras for the purposes of the shraddha of either of his parents.

5. Properties Incapable of Division

There may be joint family properties which are indivisible in nature such as car, furniture, animals etc. In such cases, the partition of these properties cannot be done. Therefore, such properties are sold in the market and the amount received is distributed between the coparceners. Another way is that one of the coparceners may take the property and may deposit the money in the accounts of the other coparceners.

Case Law

In case of Shantaram v. Waman⁹, the court said that where a strip of land is reserved as a common passage by a decree in a suit for partition for the use of the coparceners, none of the coparcener is entitled to a partition of that strip.

6. Are the Idols and Places of Worship Divisible?

As per Manu, family idols and place of worship are indivisible properties¹⁰. The management of the family idols and place of worship, may be given to the senior most member of the family and the liberty may be given to the other members of the family to have access to the place of worship. According to Mulla¹¹, in the absence of any dedication of a building for the worship of the family idol, the building should not be excluded from partition, merely because it is used for the worship of the idol. However, the court may in such a case give an option to the member of the family¹².

Case Law

In the case of Pramathanath Mullick v. Pradhyumna Kumar Mullick¹³, the Judicial Committee held that the right of worship of an idol cannot be made the subject of partition and that the joint owners of such a right are entitled to perform their worship by turns.

7. Can There be a Partition of Right of Way?

According to Mulla, the right of way will remain the joint property of the members of the family and cannot be the subject matter of partition. The right of way can be claimed by the coparcener, only when the coparcener is able to prove that it was allotted to him in partition.

8. Whether a Coparcener Can Include a Term or Stipulation Be Put Under the Deed for the Right to Easement?

Case Law

In Nallammal v. Sengoda Gounder¹⁴, it was held that easement right is statutory right subject to the conditions and prerequisite conditions and the burden of prove as stated in the Indian Easement Act. Neither it can be created nor be destroyed by reading of recital in document to the convenience of the parties¹⁵. If any such recital has been inserted as to the existence of any such right in the nature of easement right, which are liable to be rejected at the threshold since parties cannot conceive easement right upon themselves on somebody land, which is the crux and nucleus of the right of easement.

9. Share Allotted to Coparcener in Partition

According to the rules of partition, the share allotted to each coparcener on partition is his separate share. Once the partition takes place, the coparcener is separated from his father, brothers etc. Therefore, each of them are the owners of their separate share. However, such coparceners remains joint with his male issue. So now, his share will be divided between himself and his male issue and those who have already been separated have no right on this share. In case there is a death of such coparcener, then, his share will devolve according to the rules of succession to his heirs.

Angadi Chandranna v. Shankar 2025 SCC OnLine SC 877

In the present case, following the partition of ancestral property between Defendant No. 1 and his brothers, Defendant No. 1 purchased his brother’s share using his personal income. He later sold the property to the Appellants, asserting that the share acquired from his brother had become his self-acquired property. He further claimed that, in the absence of any existing coparceners, he held absolute authority to alienate the property. However, the Respondent/Plaintiff contested the transaction, contending that Defendant No. 1 had acquired the property using funds from the joint family nucleus. As such, the property could not be classified as self-acquired but retained the character of ancestral property.

While the Trial Court ruled in favour of the Respondent, the First Appellate Court reversed that decision and declared the Appellants to be the rightful owners of the property. After the High Court set aside the judgment of the First Appellate Court, the Appellants filed an appeal before the Supreme Court.

The primary question for consideration before the Supreme Court was whether the suit property was ancestral, forming part of the joint family estate, or self-acquired by Defendant No. 1.

The Court reaffirmed it is a well-established legal principle that the mere existence of a joint Hindu family does not create a presumption that a property is joint family property. The burden of proof lies on the person claiming the property to be joint. However, if that person can demonstrate that there existed a joint family nucleus from which the property could have been acquired, a presumption arises in favour of the property being joint. The burden then shifts to the person asserting that the property is self-acquired to prove that it was purchased with personal funds, independent of the joint family nucleus.

The court also said that when the income derived from the joint family property or when a joint family property is sold and the sale consideration is utilised for maintenance and education within the joint family, the same are to be treated as out of necessity as it is the duty of every Kartha to do so. Hence, it is sufficient to satisfy the legal necessity if the Kartha had sold the property and used the funds for upbringing the children. That apart, under the customary practices and tradition in this country, it is the father who performs the marriage of his children and therefore, the expenses incurred for that purposes are also to be treated as expenses out of necessity.

The court reiterated that once the joint family property has been lawfully partitioned, it ceases to retain its character as joint family property, and the respective shares allotted to each member become their self-acquired properties.

Therefore, the Court allowed the appeal, holding that Defendant No. 1 had lawfully acquired the suit property and had validly transferred it to the Appellants.

10. Who Can Claim Partition?

In a Mitakshara Hindu Joint family, the coparceners are having a right to demand partition. This is one of the legal incidents of the coparcenary. It is only the coparceners and no other members of joint Hindu family who can demand partition. Following are the persons who can demand partition:

10.1 Coparceners

The coparceners have a right to demand partition as well as entitled to get a share at the time partition. All the coparceners whether, minor or major are having this right in coparcenary.

Father, Son, Daughter, grandson, grand daughter, great grandson and great grand daughter whether born or adopted can demand partition.

Herein the issue also arises as to who can claim partition from whom. Whether a son can demand partition from the father or even a grandson can demand partition from the grandfather.

Case Law

In the view of Bombay High court in the case of Apaji v. Ramchandra,¹⁶ “without the assent of the father, a son is not entitled to demand partition if the father is joint with with his own father, brother or other coparceners.

But according to the opinion of the other High courts, such as Patna high court and Allahabad High court, no such exception is recognised and therefore, a grandson can also demand partition from his grandfather as a coparcener is having a right to demand partition as he is the member of coparcenary. It is his inherent right to demand partition.

Illustration

There is a joint Hindu Family consisting of F, father, FS, his son and FS, his grandson. FSS instituted a suit for partition against F. As per Bombay High Court’s decision, he needs father’s assent and as per other High Court, it is his inherent right as he is coparcerner, therefore, he does not need the assent of the father.

10.1.1 If the Coparcener is Minor

In case of a minor copacerner, it’s the guardian of such minor who can claim partition on behalf of minor. S/He can also institute a suit claiming his share in partition. However the court has to be very cautious in passing the decree of partition as the partition should be for the benefit of the minor coparcener.

Case Law

In Kakumanu Peda Subbayya v. Kakumanu Akkamma¹⁷, the court observed that where the suit is brought on behalf of the minor coparcener for the partition, the court should not pass the decree of partition unless the partition is likely to benefit the minor for advancing his interest or protecting him form danger. The court said

“On the conclusion reached above that it is the action of the person acting on behalf of a minor that brings about a division in status, it is necessary to examine what the nature of the jurisdiction is which the courts exercise when they decide whether a suit is for the benefit of a minor or not. Now, the theory is that the Sovereign as parens patriae has the power, and is indeed under a duty to protect the interests of minors, and that function has devolved on the courts. In the discharge of that function, therefore, they have the power to control all proceedings before them wherein minors are concerned. They can appoint their own officers to protect their interests, and stay proceedings if they consider that they are vexatious.”

10.2 Son/Adopted Son

The adopted son has same rights in the coparcerary as a coparcener by birth. Such adopted son has right to claim partition only from the date of his adoption and not from his date of birth. As per section 12, Hindu Adoption and Maintenance Act, 1956, adopted child becomes the child of the adoptive parents from the date of adoption and from that date the child’s ties are severed with the family of his birth.

10.2.1 Child Born Conceived at the Time of Partition But Born After Partition

Where the child is in the mother’s womb at the time of partition. Such child is considered as the living child for the purpose of partition. The right in the coparcenary vests in the child the day the child is conceived or begotten. Therefore, at the time of partition, the share of such child should be kept aside even if such child is not born at that time. If such share is not kept aside, then such coparcener can reopen the partition.

Example

For example, F, father has two sons, S1 and S2. There is a partition between father and his sons. S3 at that time of partition is in the mother’s womb. When the partition takes place, his share has to be kept separately. He would be entitled to that share the moment he is born. Therefore, the property will be divided between F, S1, S2, S3 equally that is one fourth each. If the share of S3 is not kept separately, then he may reopen the partition.

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1. Merriam Webster Dictionary

2. AIR 1964 SC 510

3. “There are similar other texts indicate that Hindu law texts not only sanction the giving of property to daughters at the time of partition or at the time of their marriage, as the case may be, but also condemn the dereliction of the said duty in unequivocal terms. It is true that these Hindu law texts have become obsolete. The daughter has lost her right to a share in the family property at the time of its partition. But though the right has been lost, it has been crystallised into a moral obligation on the part of the father to provide for the daughter either by way of marriage provision or subsequently. Courts even recognised making of such a provision not only by the father but also after his death by the accredited representative of the family and even by the widow. The court also referred to the various Hindu texts and observed:

“In Madhaviya, pp. 41 and 42, a text of Katyayana is cited authorising the gift of immovable property by a father to his daughters beside a gift of movables upto the amount of 2,000 phanams a year. In Vyavahara Mayukha, p. 93, the following text of Brihaspati is also cited by the author of the Madhaviya to the same effect:

“Let him give adequate wealth and a share of land also if he desires.”

Devala says – ”To maidens should be given a nuptial portion of the father’s estate”- Colebrooke’s Digest, Vol. 1, p. 185. Manu says – ”To the unmarried daughters by the same mother let their brothers give portions out of their allotments respectively, according to the class of their several mothers. Let each give one-fourth part of his own distinct share and those who refuse to give it shall be degraded.”

4. (1907) 17 M.L.J. 528.

5. (1955) Mad 932.

6. AIR 1922 PC 201.

7. (1908) 32 Bom 26.

8. Vijnaneshwara’s Mitakshara, Prayaschittadhyaya, Moghe’s Edition, page 280.

9. (1922) 47 Bom 389

10. Manu, Chapter IX, Verse 219

11. Mulla, Chapter XVI – Partition and Renion – Mitakshara Law, Pg. 486, Lexis Nesxis Publication, 22nd Edition

12. Schindra Hem Chandra AIR 1931 Cal 573.

13. AIR 1925 PC 149 (R)

14. MANU/TN/2258/2022

15. The court referred to the opinion of Justice Dr. G. JAYACHANDRAN reported in MANU/TN/0413/2019:2019 (5) CTC 80 [K. Kalianna Gounder v. Sundararaj] wherein it was held that easement right cannot be created by reading a recitals any document by the parties themselves it has to be proved in the manner known to law as prescribed under the Indian Easement Act.

16. (1892) ILR 16 BOM 29.

17. AIR 1958 SC 1042